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The article explains the basics of Surrogacy and the features of Surrogacy (regulation) Bill, 2016.

India has emerged as a surrogacy hub for couples from different countries and there have been reported incidents concerning unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and rackets of intermediaries importing human embryos and gametes.

Widespread condemnation of commercial surrogacy prevalent in India has also been regularly published in different print-and electronic media since last few years highlighting the need to prohibit commercial surrogacy and allow ethical altruistic surrogacy.

The 228th report of the Law Commission of India has also recommended for prohibiting commercial surrogacy and allowing ethical altruistic surrogacy to the needy Indian citizens by enacting a suitable legislation.

What is surrogacy?

When a couple wants a baby but is unable to have a child because either or both partners are medically unfit to conceive, another woman is artificially inseminated with the sperm of the father.

She then carries the child full term and delivers it for the couple. In such a case, the surrogate mother is the biological mother of the child. In instances when the father’s sperm cannot be used, a donor sperm can also be used. This is traditional surrogacy.

There is also gestational surrogacy, wherein eggs from the mother are fertilised with the father’s/donor’s sperm and then the embryo is placed into the uterus of the surrogate, who carries the child to term and delivers it. In this case, the biological mother is still the woman whose eggs are used, while the surrogate is called the birth mother.

Why opt for surrogacy?

Couples opt for surrogacy when traditional means of conceiving a child have failed, this also includes in-vitro fertilisation, or it is dangerous for the couple to get pregnant and give birth.

The following medical conditions usually necessitate surrogacy:

Malformation of or infection in the womb

Absence or removal of womb by hysterectomy

Recurring miscarriages

Repeated failure of IVF

Other conditions that make impossibly or risky for a woman, such as severe heart disease

The Union Cabinet has given its approval for introduction of the "Surrogacy (Regulation) Bill, 2016".

The Bill will regulate surrogacy in India by establishing National Surrogacy Board at the central level and State Surrogacy Boards and Appropriate Authorities in the State and Union Territories. The legislation will ensure effective regulation of surrogacy, prohibit commercial surrogacy and allow ethical surrogacy to the needy infertile couples.

All infertile Indian married couple who want to avail ethical surrogacy will be benefited. Further the rights of surrogate mother and children born out of surrogacy will be protected. The Bill shall apply to whole of India, except the state of Jammu and Kashmir.

The major benefits of the Act would be that it will regulate the surrogacy services in the country. While commercial surrogacy will be prohibited including sale and purchase of human embryo and gametes, ethical surrogacy to the needy infertile couples will be allowed on fulfilment of certain conditions and for specific purposes.

As such, it will control the unethical practices in surrogacy, prevent commercialization of surrogacy and will prohibit potential exploitation of surrogate mothers and children born through surrogacy.

No permanent structure is proposed to be created in the Draft Bill. Neither there are proposals for creating new posts.

The proposed legislation, while covering an important area is framed in such a manner that it ensures effective regulation but does not add much vertically to the current regulatory structure already in place at the central as well as states.

Accordingly, there will not be any financial implications except for the meetings of the National and State surrogacy Boards and Appropriate Authorities which will be met out of the regular budget of Central and State governments.

Bill bans commercial surrogacy, and bars married couples who have biological or adopted children, single people, live-in partners and homosexuals from opting for surrogacy.

It only allows “altruistic surrogacy” for childless couples who have been married for at least five years. Then too, the surrogate mother should be a “close relative” of the couple, should be married and have borne a child of her own.

New surrogacy Bill bars single parents, homosexuals, live-in couples, foreigners married woman who has at least one child of her own can be a surrogate mother only once in her lifetime. Childless or unmarried women are not allowed to be surrogate mothers.

Commercial surrogacy, abandoning the surrogate child, exploitation of surrogate mother, selling/ import of human embryo have all been deemed as violations that are punishable by a jail term of at least 10 years and a fine of up to Rs 10 lakh. Clinics have to maintain records of surrogacy for 25 years. The rights of the surrogate child will be the same as that of a biological child.

Question:

India is emerging as a leader in international surrogacy and a sought after destination in surrogacy-related fertility tourism. But there is a need to regulate this practice because what was started for convenience has become a luxury. Comment.

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